Speaking Up: A Model of Judicial Dissent and Discretionary Review

We draw together concepts from political science, law, and economics to model discretionary actions by agents in a weak hierarchical system, wherein agents at a higher level cannot directly discipline those at a lower level. In particular, we model the decision by an appeals court judge to communicate information to justices on a supreme court (via a written dissent) that a case is worthy of reconsideration, and discretionary decisions by justices on that supreme court to choose whether to formally review the case. In our model, judges and justices receive utility both from the outcome of the case in question and from the breadth of application of the outcome to jurisdictions besides the original source of the case (that is, the precedential value of the case). Action is costly for judges and for justices: for the appeals court judge, producing the dissenting opinion involves effort and may even preclude being able to so promote other cases; for the justices on the supreme court, there are too many such cases to consider, so the decision to review a case implies foregone opportunities to review other cases, cases through which they could also influence the evolution of the law. One very plausible equilibrium in our model predicts that an appeals court judge will find it valuable to communicate information to like-minded supreme court justices. However, a more unexpected type of equilibrium can exist that can best be summarized as an equilibrium with "strange bedfellows:" a judge with a particular ideological orientation may choose to communicate and influence a justice (or justices) with different ideological views in order to persuade the justice(s) to vote to review the case in question. Furthermore, we show that by setting a high hurdle for discretionary review, the supreme court justices can capitalize on the desire of appeals court judges to influence law, thereby encouraging enhanced informational effort by the appeals court judges: judges act as screeners of the cases most likely to be of interest to justices.